USTR Says Congress Won't Be Restricted By ACTA

from the yeah,-right dept

Responding to a series of questions that Senator Ron Wyden asked, Ron Kirk, the US Trade Representative, and the Obama administration apparently believe that Congress and the courts will not be constrained in any way by ACTA. This is a bit odd, since the last draft of the agreement conflicts with US law in some places, and most certainly appears to state that countries agreeing to ACTA need to follow certain laws that would block Congress' ability to change copyright laws in various ways. Of course, what's really going on here is a sneaky political game. Since the administration wants to call this an "executive agreement," rather than a treaty (so that it doesn't need Senate approval), they have to claim that it won't really impact US laws. Yet... you can be absolutely positive that if Congress moved to change a law in any way that conflicted with ACTA, we'd be hearing speeches and reading stories about how we're not living up to our "international obligations," such as those found in ACTA. It's a really cynical political move by the administration.

Re:

While reasonable minds can always differ, I have as yet to see a convincing argument that the provisions of ACTA are directly at variance with relevant US law.

Yes, potential inconsistencies are regularly raised, but upon analysis they do not withstand scrutiny. The issues raised are largely hypotheticals along the lines of "assuming this, then what about this?"

If opponents of ACTA are convinced that such inconsistencies are present, then in my view it behooves them to specifically spell out what they are and why. It is useful to bear in mind in such an exercise that federal statutes already have a rich history of statutory analyses by our federal courts, and when such analyses are examined by review of the pertinent caselaw these so-called inconsistencies have been shown to be of dubious merit.

If a may make a final observation, it has been repeated time and time again that the executive branch does not have the constitutional authority to bind future actions by Congress. The Separation of Powers Doctrine makes this only too clear. Unlike a treaty, which is entitled to the full force and effect of law, an executive agreement is not. This is not a trivial distinction. It is a fundamental consequence of our constitution and the powers allocated by it between Articles 1 and 2.

For decades the US has been on the receiving end of pressure, mostly from Europe, and France in particular, to adapt its laws in the pursuit of international harmonization. The Copyright Act of 1976 is one example, followed by later amendments, also in the name of international harmonization, elimination almost in their entirety the statutory formalities that had been a key consideration in the formulation of US law. Here the shoe is on the other foot for the first time in recent history, which in my view is long overdue.

As I sit here there is legislation moving through Congress pertaining to structural changes in US patent law, also in the name of international harmonization. Once more international pressure is being brought for the US to change its laws to the satisfaction of other nations. Frankly, I hope the legislation meets an inglorious death, and if it does not, then I look forward to a date in the future when the US returns the "favor".

Re: Re:

Hmmm...

"Yes, potential inconsistencies are regularly raised, but upon analysis they do not withstand scrutiny. The issues raised are largely hypotheticals along the lines of "assuming this, then what about this?""

Is that not the main reason for the DMCA? It's talking about potential lost income for the RIAA/MPAA that is being used as consumer surplus in other parts of the US economy. And yet, this one group continues to lobby for rules favorable to them with bad information that flies in the face of any carefully thought out analysis.

"If opponents of ACTA are convinced that such inconsistencies are present, then in my view it behooves them to specifically spell out what they are and why. It is useful to bear in mind in such an exercise that federal statutes already have a rich history of statutory analyses by our federal courts, and when such analyses are examined by review of the pertinent caselaw these so-called inconsistencies have been shown to be of dubious merit."

KEI has done a very EXCELLENT job of keeping the ACTA reps to task with the leaks that come out. They have spelled out the problems such as three strikes rulings, third party liability, the inherent secrecy over the act among a number of other problems with this document.

In regards to caselaw vs DMCA, I would think it's pertinent to say, that there continue to be problems with the DMCA. The ACTA would compound the issues such as statutory damages in copyright law (without proof of infringement), border seizure (ICE continues to be overzealous), or discussion with the rights holder about what is and is not infringement (creating an enforcement bias).

" It is a fundamental consequence of our constitution and the powers allocated by it between Articles 1 and 2."

Yes, but riddle me this:

Why is it that trade industries are afforded this special governance, which is not allowed to be discussed in public? While Steven Tepp can say that there are no legitimate concerns, it should be understood that most of the reasoning behind the DMCA AND the ACTA have been debunked in various ways.

The GAO has found piracy not to be as much of a loss as expected, especially in regards to people knowing they are purchasing counterfeit goods at cheaper prices.

The "Media Piracy" book goes into great details about the methodologies and secrecy of the trade industries.

There's a lot of information that says this "executive agreement" doesn't do much save for bring further attention to the secrecy of a bill that can change quite a number of laws.

"For decades the US has been on the receiving end of pressure, mostly from Europe, and France in particular, to adapt its laws in the pursuit of international harmonization. The Copyright Act of 1976 is one example, followed by later amendments, also in the name of international harmonization, elimination almost in their entirety the statutory formalities that had been a key consideration in the formulation of US law. Here the shoe is on the other foot for the first time in recent history, which in my view is long overdue."

That's the other way around, actually. The US, along with the 301 report, uses copyright laws to bully other nations (outside of the G8) to comply with US demands.

(example) Brazil wants a pharmaceutical industry? The US uses the 301 report to pressure Brazil NOT to make one. This creates more demand for American pharmaceutical companies. And it's funny you bring up harmonization. Do you want us to play leapfrog with other nations?

We benefited greatly from piracy from Europe with books (Charles Dickens era) and even German rocket scientists(post-WWII). These are just two examples.

"As I sit here there is legislation moving through Congress pertaining to structural changes in US patent law, also in the name of international harmonization. Once more international pressure is being brought for the US to change its laws to the satisfaction of other nations. Frankly, I hope the legislation meets an inglorious death, and if it does not, then I look forward to a date in the future when the US returns the "favor"."

Uhm... The US is the aggressor from the lobbying groups that spend X^10 amounts of money on legislation. The problem is the collusion of government to allow someone like the RIAA to try to get the laws changed in various countries at different times.

Re: Re: Re:

Re: Hmmm...

The topic here is ACTA, and not other perceived issues associated with copyright and patent law in general.

My point is simply that no compelling case has been made, and with all due deference to KEI, supporting the claim that ACTA will require changes be made to US law and that the hands of future Congresses will be bound.

Re: Re: Hmmm...

No, but you absolutely love strongarming other sovereign nations into using this shitty "Executive Agreement". It's not about propping up an industry that consistently refuses to engage with innovators, according to the people who run America. But if that's the case, I I have a bank to sell you, only 3 cents a dollar.

Sorry Mike

I usually agree with you, but you have a complete mis-reading of the statement:

"USTR Says Congress Won't Be Restricted By ACTA"

should read:

"USTR Says Congressmen Won't Be Restricted By ACTA"

What they mean is that while everyone else is restricted by ACTA, members of congress will in no way be restricted as they have a blanket license to download and share anything they want with each other and their families while the rest of us will be prosecuted and tortured.

They have an airport express lane to skip the body scan and molestation and they have a free pass to get music and movies from the congressional media server they like to call 'the interwebs'.

Re: Re: Hmmm...

Saying that the US Congress will not be bound by the agreement is correct as a matter of law, but in practical aspects it has the effect of pressuring Congress.

As soon as it is passed, immediately we will see pressure on Congress from RIAA/MPAA copyright lobby to meet our "international obligations." It makes logical sense as an arguement. We agreed to X in the agreement, our co-signees are moving forward and are in compliance, how can we ignore the agreement?

"The US is weak on copyright protections and copyright industry generates $1 Trillion dollars per year to the US economy!"

It's another card up the sleaves of the copyright industry to use to get more insane laws passed.

Re: Re: Hmmm...

I don't recall saying that ACTA would be legally binding on a future Congress, if it is not considered a legally binding agreement. Getting USTR to say, on the record, that they don't consider ACTA a legally binding norm, as regards future legislation, is helpful. Certainly other countries have a different understanding, and that is why Kirk's statement may be significant. As regards current laws, we have identified a number of US statutes that are not in compliance with the ACTA provisions on injunctions and damages. About 90 percent of the objections we raised in Spring of 2010 were actually fixed from August to November of 2010. But some remaining inconsistencies exist. You could read the letter we sent to the Library of Congress (http://keionline.org/node/1021), and react to the actual examples, before dismissing this. (We have been pretty specific). Will the US actually change these laws? Probably not. What exactly does that mean? That ACTA has an understanding of "implied exceptions," as has been informally claimed by USTR? That ACTA is not actually enforceable? That ACTA was only intended as a stick to be used against developing countries, but never domestically? All of the above?

But in terms of future legislation, you sould pay a lot of attention to the Orphan works issue. ACTA norms are in direct conflict with the damages section of the orphan works bill that earlier passed the Senate.(http://www.keionline.org/node/980) And, the ACTA norms are now included in the US proposal for the IPR chapter of the TPP trade agreement, that will have dispute resolution procedures.

Re: Re: Re: Hmmm...

And, the ACTA norms are now included in the US proposal for the IPR chapter of the TPP trade agreement

Help me understand this. TPP is a real treaty (not an executive agreement) that will need senate ratification, right? So, all those ACTA exceptions are no longer exceptions if we ratify TPP, right? Anyone got a good list of TPP talking points to bring up with my reps?

Steve Tepp

In your link to Steve Tepp, he was appearing on the panel representing the copyright office. In the Spring of 2010, Tepp frequently said ACTA would was consistent with US law, and with the proposed legislation to deal with Orphan Works. Shortly thereafter, in July of 2010, Tepp took a as "senior director of Internet Counterfeiting and Piracy for the Global Intellectual Property Center (GIPC) at the U.S. Chamber of Commerce. http://www.theglobalipcenter.com/staffmembers/steve-tepp